1. This appeal by special leave challenges the Judgment and Order dated 20.04.2010 passed by the High Court at Calcutta dismissing Criminal Appeal No.53 of 1997 preferred by the appellant herein and thereby affirming his conviction and sentence under Section 302 read with Section 34 of the Indian Penal Code (for short “IPC”).

2. According to the prosecution, on 12.07.1993 at about 6.00 AM PW6 Gautam Kheto found a dead body lying on the road in front of his house with a handkerchief tied around the neck. He reported the incident which was recorded in G.D. Book of Muchipara Police Station dated 12.07.1993, whereafter the police conducted inquest on the dead body and sent it for autopsy. The dead body was having a tattoo on the right fore-arm with “Ramchandra Singh” written in Hindi. Post-mortem examination was conducted by PW18 Dr. Rabindra Basu who opined that the death was due to strangulation and the ligature mark and head injuries were ante-mortem in nature.

3. At about 10.10 PM on the same day i.e. 12.07.1993 PW4 Jai Kishore
Guin came to Muchipara Police Station and made a statement that he had
heard conversation between PW3 Kailash Srivastava and PW16 Shyamlal Jadav
which suggested that they had knowledge about the incident. The
investigating officer could then find both PW16 Kailash Srivastava and PW6
Shyamlal Yadav on 13.07.1993. According to both these witnesses they had
seen an old man and four other persons alighting from a taxi near a
sweetmeat shop in Akrur Dutta Lane and that the old man, who was in drunken
condition was taken away by the other persons. According to these
witnesses, the number of taxi was 3157. The investigating officer then
located the taxi driver, i.e. PW5 Laxminarayan Dey, who stated that in the
intervening night of 11.07.1993 and 12.07.1993 five persons had boarded his
taxi, four persons were younger in age, while one was an old man.
According to this witness there was some altercation amongst them; that
near a sweetmeat shop all of them alighted and that when they came back
only four of them had returned. He thereafter dropped them at Rajabazar.

4. PW8 Saraswati Singh lodged a report on 16.07.1993 that her husband
named Ramchandra Singh was missing since 11.07.1993. Two days later she
was called to the police station and shown certain photographs but she
could not identify the picture. After few days, she again went to the
police station with her nephew who could identify the picture to be that of
Ramchandra Singh, the husband of said PW8 Saraswati Singh.

5. On the strength of suspicion expressed by said PW8 Saraswati Singh
the appellant Mohd. Sajjad and one Sk. Sahid @ Bablu were arrested on
09.09.1993 and 11.09.1993 respectively. Both these persons were subjected
to test identification parade on 06.10.1993 in which PWs 3, 5 and 16
identified them. After completion of investigation charge-sheet was filed
against the appellant and said Sk. Sahid @ Bablu for the offences
punishable under Section 302 read with Section 34 IPC while three persons,
namely, Mohd. Sehzada, Sheikh Kaloo and Sheikh Panchu were stated to have
been absconding and declared as proclaimed offenders.

6. The prosecution principally relied upon the testimony of PWs 3, 5, 8
and 16. PW3 Kailash Srivastava in his deposition stated as under:
“I live at No.8, Gopi Lane, Bowbazar, Calcutta. I am a plumber. I know
Haripada Das. He was my previous employer. I sleep at Premises No.8, Gopi
Bose Lane, Calcutta. In the night of 11.07.1993 an incident took place.
That night there was pain in the stomach of Haripada Das. Haripada Das
lives in No.3, New Bowbazar Lane, which is close to my residence. At about
12/ 12:15 in that night a man came from Haripada and awoke me from sleep.
I went to Haripada’s place with that man. Haripada told me that he should
be immediately hospitalized for the pain in hisstomach. Then myself went
to search out a taxi to take Haripada to Hospital. Shyamlal Yadav is a
driver. Haripada Das is a plumber contractor. We went towards Nirmal Ch.
Street for a taxi. We saw a taxi entering Akrur Dutta Lane from Nirmal Ch.
Street. We also entered Akroor Dutta Lane to catch the taxi. We saw the
taxi to stop near sweetmeat shop in Akroor Dutta Lane. We saw about 5
persons getting down from the taxi. We approached the taxi driver to hire the taxi for taking the patient to hospital. The taxi driver refused to take the patient to the hospital. The other persons who got down from the taxi also got annoyed with us and told us to go away because they would take the taxi for return journey. There was an old man in the taxi. And other 4 persons scolded us by saying us to away. We found the old man to be in drunken condition. The old man was taken out of the taxi, the other persons present there. Then we came away from the place after noting the number of that taxi. The number of the taxi was 3157. We noted the number of that taxi because the driver refused to take the patient to hospital with the idea that we should lodge diary against the driver. We saw those persons by the electric light that was burning on the road. If I now see any of those persons I may recognize those persons who got down from the taxi that night.”

PW16 Shyamlal Yadav supported the version of PW3 Kailash Srivastava and
deposed on similar lines. PW5 Laxminarayan Dey deposed that on the night
intervening 11.07.1993 and 12.07.1993 five persons had boarded his taxi.
He also deposed to the fact that while the taxi had stopped near a
sweetmeat shop two persons had come to hire his taxi and that there was
some altercation with those persons.

7. PW8 Saraswati Singh in her examination stated as under:
“My husband’s income out of salary was not sufficient to maintain our
family. To make up the income to meet the family expenses, I used to buy
kerosene oil from Scott Lane Market and sale it at higher price at my
residence. I used to earn profit of Rs.30/40 per day. In course of my
business in kerosene oil, I picked acquaintance with a boy who used to sell
kerosene oil on that market. His name is Raju which I gathered from him.
Raju with other boys used to visit our house in connection with my business
in kerosene. I enquired the name of those persons accompanying Raju and
learnt from him that one of them was Sahajad, another was Bablu, the other one was Panchu and another was Kaloo. I used to purchase kerosene oil from Raju as he used to sell me oil at cheaper price than others.”

She further stated that there were some disputes with Raju in connection with the aforesaid business. As regards disappearance of her husband and the steps taken by her thereafter she stated as under:

“My husband did not die in our home. In the night of 11th July 1993, my
husband did not return home. Sometimes my husband used to pass night
outside home but he used to come back home regularly. Next day I went to
the police station to lodge a diary. When I met a police officer there
with dress who was going out of P.S. I told him that my husband did not
return home that night and I wanted to make a diary. He asked me whether
my husband used to drink or not and I told him tht my husband used to
drink. He advised to me to search in the police station and in the
hospital for my husband. Thereafter, I went to Entally Police Station but
did not find my husband there. I then again went to Bowbazar P.S. but I
did not find my husband there. Then I went to Amherest Street P.S. and
therefrom I went to Jorasanko P.S. but I did not find my husband anywhere
there. On the next day I went to my relation’s house. I went to
Bhawanipore at the house of my husband’s sister. They informed me that my
husband did not go to their place and asked me to diarize the matter. Then
I went to Chandernagore there from my husband’s co-villagers used to live
but I did not find my husband there also. I also went to Medical College
Hospital, then to Compbel Hospital. I also searched in P.G. Hospital for
my husband but I did not find my husband anywhere. On 16th of that month
my husband’s sister son came to our house and scolded me for not diarizing
the matter. Then I went to Muchipara P.S. and lodged a diary. After 2
days I was called from the P.S., I was shown some photographs in the P.S.
As I could not distantly recognized the person from the photograph I told
the police to call my husband’s sister’s son who could identify that person
from the picture as I have defect in eye-sight. My husband’s sister’s son
then came to us on 24th of that month. I went to the police station with
him and he saw the photographs and identified the picture of the photograph
as that of his Mama i.e. my husband. Then myself with Shib Kumar Singh, my
husband’s sister’s son went to N.R.S. Hospital (Campbel). Then I identified
the body by comparing with the photograph in that hospital to be the dead
body of my husband…….”

8. The prosecution also pressed into service confessional statement
given by Sk. Sahid @ Bablu under Section 164 Cr.P.C. which was recorded by
PW19, the then Chief Metropolitan Magistrate, Calcutta on 27.09.93.
Insofar as test identification is concerned, the prosecution relied upon
the testimony of PW17, Metropolitan Magistrate Calcutta who testified that
in the test identification parade PW5 Laxmi Narayan Dey and PW3 Kailash
Srivastava could identify both the accused while PW16 Shyamlal Yadav could
identify only the appellant.

9. After considering the material on record the trial court found that
the prosecution was successful in bringing home its case against both the
accused. Though the evidence regarding confession was discarded by the
trial court, it found the evidence of three witnesses, namely, PWs 3, 5 and
16 regarding identification of the accused to be trustworthy. It observed
as under:
“It is true that the Test Identification Parade was held two months after
the incident of murder but the accused were absconded and they were
arrested on 9th September and 11th September and the Test Identification
Parade was held on 6th October, 1993. It is also true that the witnesses
did not disclose or give any description of the accused in their statement
before the police. But the fact that the accused were identified by the
witnesses in Court which is substantive evidence and the proceedings of
Test Identification Parade are used to corroborative evidence. But, it
should be remembered here also that this is not only evidence on the
prosecution side as the prosecution case hinges on circumstantial evidence
and besides the evidence of identification of the accused of three PWs
which is merely a link of the chain of circumstances while there are other
names which have completed the chain. I reiterate here that the names of
the accused came out from the statement of the widow who has given a vivid
description of the incident as to how they (accused) came colder to her
family while dealing in kerosene oil and the motive of the accused as
ascribed by her to commit the murder of her husband was to grab her money
and for committing some other heinous crimes of which the PW10 has stated
in her evidence. So, when the entire chain of circumstantial evidence is
complete, it is futile to challenge any link separately unless there is
glaring instance of disbelief.”

10. The circumstances that the deceased was last seen in the company of
four persons including the appellant and said Sk. Sahid @ Bablu and that
the appellant had disputes with PW8, wife of the deceased, weighed with the
trial court in accepting the case of the prosecution. The Trial Court did
not find it safe to rely on the confessional statement of Sk. Shahid @
Bablu. The Trial Court by its judgment dated 19.12.1996 convicted the
appellant and said Sk. Sahid @ Bablu for the offences punishable under
Section 302 read with Section 34 IPC. After hearing the parties, the trial
court by its order dated 23.12.96 sentenced both the accused to suffer
imprisonment for life and to pay fine of Rs.5,000/- each, in default
whereof to suffer rigorous imprisonment for six months.

11. It appears that Sk. Sahid @ Bablu did not prefer any appeal against
his conviction and sentence while the appellant carried the matter by
filing Criminal Appeal No.53 of 1997 challenging his conviction and
sentence. The High Court affirmed the view taken by the trial court and
dismissed the said criminal appeal vide its judgment dated 20.04.2010 which
is presently under appeal.

12. Appearing for the appellant, Mr. Anand Dey, learned Advocate submitted
that the entire case rests on the suspicion expressed by PW 8 Saraswati
Singh arising from some disputes in connection with the business and the
identification by PWs 3, 5 and 16. It was submitted that the Test
Identification Parade was held more than two and half months after the
incident and in any case 25 days after the arrest of the accused. In his
submission, such Test Identification Parade was completely flawed. To a
pointed question that if the appellant deserved acquittal whether such
acquittal would enure to the advantage of the other accused who had not
even preferred an appeal, Mr. Mrinal Kanti Mandal learned Advocate
appearing for the Respondent-State submitted in the affirmative.

13. In the present case, apart from the identification by PWs 3, 5 and 16
and their version that they had seen the deceased in the company of four
persons on the night intervening 11.7.1993 and 12.7.1993, there is nothing
which could point in the direction of the guilt of the appellant and said
Sk. Sahid @ Bablu. The confessional statement having been discarded, there
is no other material to lend any corroboration. The matter thus stands and
rests purely on the identification by PWs 3, 5 and 16 apart from the
suspicion expressed by PW 8 Saraswati Singh.

14. In Lal Singh and others Vs. State of U.P.[1] , this court in
Paragraphs 28 and 43 dealt with the value or weightage to be attached to
Test Identification Parade and the effect of delay in holding such Test
Identification Parade. Said paragraphs are as under:-
“28. The next question is whether the prosecution has proved beyond
reasonable doubt that the appellants are the real culprits. The value to be
attached to a test identification parade depends on the facts and
circumstances of each case and no hard-and-fast rule can be laid down. The
court has to examine the facts of the case to find out whether there was
sufficient opportunity for the witnesses to identify the accused. The court
has also to rule out the possibility of their having been shown to the
witnesses before holding a test identification parade. Where there is an
inordinate delay in holding a test identification parade, the court must
adopt a cautious approach so as to prevent miscarriage of justice. In cases
of inordinate delay, it may be that the witnesses may forget the features
of the accused put up for identification in the test identification parade.
This, however, is not an absolute rule because it depends upon the facts of
each case and the opportunity which the witnesses had to notice the
features of the accused and the circumstances in which they had seen the
accused committing the offence. Where the witness had only a fleeting
glimpse of the accused at the time of occurrence, delay in holding a test
identification parade has to be viewed seriously. Where, however, the court
is satisfied that the witnesses had ample opportunity of seeing the accused
at the time of the commission of the offence and there is no chance of
mistaken identity, delay in holding the test identification parade may not
be held to be fatal. It all depends upon the facts and circumstances of
each case.
………………………..
43. It will thus be seen that the evidence of identification has to be
considered in the peculiar facts and circumstances of each case. Though it
is desirable to hold the test identification parade at the earliest-
possible opportunity, no hard-and-fast rule can be laid down in this
regard. If the delay is inordinate and there is evidence probabilising the
possibility of the accused having been shown to the witnesses, the court
may not act on the basis of such evidence. Moreover, cases where the
conviction is based not solely on the basis of identification in court, but
on the basis of other corroborative evidence, such as recovery of looted
articles, stand on a different footing and the court has to consider the
evidence in its entirety.”

15. In the case in hand, apart from the fact that there was delay in
holding the Test Identification Parade, one striking feature is that none
of the concerned prosecution witnesses had given any identification marks
or disclosed special features or attributes of any of those four persons in
general and the accused in particular. Further, no incident or crime had
actually taken place in the presence of those prosecution witnesses nor any
special circumstances had occurred which would invite their attention so as
to register the features or special attributes of the concerned accused.
Their chance meeting, as alleged, was in the night and was only for some
fleeting moments.
16. In Subash Vs. State of U.P.[2], the aspects of delay as well as
absence of any special features for identification and the effect thereof
were considered by this court in paragraphs 8 and 9 as under:-
“8. Apart from this infirmity we further find that Shiv Shankar was not put
up for test identification parade promptly. The identification parade has
been held three weeks after his arrest and no explanation has been offered
for the delay in holding the test identification parade. There is,
therefore, room for doubt as to whether the delay in holding the
identification parade was in order to enable the identifying witnesses to
see him in the police lock-up or in the jail premises and make a note of
his features.

9. Over and above all these things there remains the fact that a
sufficiently long interval of time had elapsed between the date of
occurrence when the witnesses had seen Shiv Shankar for a few minutes and
the date of the test identification parade. It is, no doubt, true that all
the three witnesses had correctly identified Shiv Shankar at the
identification parade but it has to be borne in mind that nearly 4 months
had elapsed during the interval. It is relevant to mention here that
neither in Exhibit Kha-1 nor in their statements during investigation, the
eyewitnesses have given any descriptive particulars of Shiv Shankar. While
deposing before the Sessions Judge they have stated that Shiv Shankar was a
tall person and had “sallow” complexion. If it is on account of these
features the witnesses were able to identify Shiv Shankar at the
identification parade, they would have certainly mentioned about them at
the earliest point of time because their memory would have been fresh then.
Thus in the absence of any descriptive particulars of Shiv Shankar in Ex.
Kha-1 or in the statements of witnesses during investigation, it will not
be safe and proper to act upon the identification of Shiv Shankar by the
three witnesses at the identification parade and hold that he was one of
the assailants of Ram Babu. As pointed out in Muthuswami v. State of
Madras[3]where an identification parade was held about 2½ months after the
occurrence it would not be safe to place reliance on the identification of
the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v.
State of A.P.[4] It was held that where the witnesses had not given any
description of the accused in the first information report, their
identification of the accused at the sessions trial cannot be safely
accepted by the court for awarding conviction to the accused. In the
present case there was a long interval of nearly 4 months before the test
identification parade was held and it is difficult to accept that in spite
of this interval of time the witnesses were able to have a clear image of
the accused in their minds and identify him correctly at the identification
parade.”

17. Similarly the issue of delay weighed with this court in Musheer Khan
vs. State of M.P.[5] in discarding the evidence regarding test
identification as under:
“8. Insofar as the identification of A-5 is concerned that has taken place
at a very delayed stage, namely, his identification took place on 24-1-2001
and the incident is of 29-11-2000, even though A-5 was arrested on 22-12-
2000. There is no explanation why his identification parade was held on 24-
1-2001 which is after a gap of over a month from the date of arrest and
after about 3 months from the date of the incident. No reliance ought to
have been placed by the courts below or the High Court on such delayed TI
parade for which there is no explanation by the prosecution.”

18. In the instant case none of the witnesses had disclosed any features
for identification which would lend some corroboration. The identification
parade itself was held 25 days after the arrest. Their chance meeting was
also in the night without there being any special occasion for them to
notice the features of any of the accused which would then register in
their minds so as to enable them to identify them on a future date. The
chance meeting was also for few minutes. In the circumstances, in our
considered view such identification simplicitor cannot form the basis or be
taken as the fulcrum for the entire case of prosecution. The suspicion
expressed by PW 8 Saraswati Singh was also not enough to record the finding
of guilt against the appellant. We therefore grant benefit of doubt to the
appellant and hold that the prosecution has failed to establish its case
against the appellant.

19. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting
that in certain cases this Court had granted benefit even to a non-
appealing accused. In Bijoy Singh v. State of Bihar[6], this court
observed that if on evaluation of the case, a conclusion is reached that no
conviction of any accused was possible the benefit of that decision must be
extended to the similarly situated co-accused even though he had not
challenged the order by way of the appeal. To similar effect was the dictum
of this court in Suresh Chaudhary v. State of Bihar[7] and in Pawan Kumar
. State of Haryana[8]and in Mohinder Singh and Anr. v. State of Punjab and
Others.[9]

20. In the circumstances we allow the present appeal, set aside the
judgments of conviction recorded by the courts below against the appellant
and acquit him of all the charges leveled against him. We further direct
that the benefit of this acquittal and our decision will also enure to the
advantage of the non- appealing accused namely Sk. Sahid @Bablu.

21. The appeal is thus allowed in aforesaid terms. The appellant was
released on bail during the pendency of this appeal. His Bail bonds stand
discharged.